강제집행면탈죄의 현황과 개선 방안

Abstract

The Evasion of Execution Rule punishes “a person who, for the purpose of evading execution, ‘conceals, destroys, damages, fraudulently transfers or encumbers his property’, thereby causing a loss to ones creditor”. It has been provided in Article 327 of Korean Criminal Act since the first enactment of the Act in 1953, and elements of this crime have never been revised thenceforth. However, the prosecution rate of this crime in recent ten years is only 7~8%, which is remarkably lower than the prosecution rate of the all crimes(around 40%) or of the all crimes with the victims’ complaints(around 20%), bringing the question whether this rule, Evasion of Execution, effectively protects creditors’ rights. According to the court, even though a debtor has the purpose of evading compulsory execution and thus causes a loss to his creditor by transferring his property, if a debtor has real intention to transfer, he is not to be punished under this article since the transfer is not a ‘fraudulent transfer’. However, as the core of the culpability of Evasion of Execution is that a debtor makes a creditor suffer a loss by knowingly decreasing debtor’s property with the purpose of evading compulsory execution, there is no reason that validity of property disposition should be needed to punish a debtor for committing Evasion of Execution. Considering that the rules for Evasion of Execution in German Criminal Act, recently revised Japanese Criminal Act, and the rules for bankruptcy crimes in the Korean Debtor Rehabilitation and Bankruptcy Act, which is special law of Evasion of Execution in Criminal Act, do not confine actus reus to fraudulent transfers, it is proper to revise ‘fraudulent transfer’ part of the Evasion of Execution Rule to ‘disadvantageous disposal of one’s property’ so that creditors’ rights can be appropriately protected through compulsory execution procedures.